1986 PLP 2814 (MLD)

4. The dead body of Munir was sent for post‑mortem examination which was conducted by Dr. Gulzar Ahmad P.W.5 at 1‑08 p.m. on 26‑8‑1981. On external examination, the Medical Officer found an "incised wound 1 c.m. x 1 c.m. x going deep at front and outer side of lower part of left half of the chest." On internal examination, the Medical Officer noted that the weapon had passed through 7th left inter‑costal space, injuring pleura, left lung, pericardium and heart. The left pleural cavity was full of blood. The injury had been caused by sharp‑edged weapon. The death was due to shock and haemorrhage as a result of the above mentioned injury which was sufficient in ordinary course of nature to cause death. The time between injury and death was "soon after". The post‑mortem was conducted in about 20 hours of death.

5. S.I. Muhammad Sharif/P.W.9 during spot inspection on 25‑8‑1981, collected blood‑stained earth from the place of occurrence vide memo. Ex h. P. F. The accused Sardar Ali alias Dari was arrested on 1‑9‑1981. On 4‑9‑1981, Sardar Ali accused while in police custody led to the recovery of blood‑stained Chhuri from beneath a wooden Phatta of a tea‑stall in Mandi Loharan which was taken in possession vide memo. Exh.P.A. by S.I. Muhammad Sharif in presence of Ali Mahboob Haidri P.W.1. and Nazar Muhammad P.W. (not examined). Chhuri P.1. was found stained with human blood vide report of Chemical Examiner Exh.P.K. and that of Serologist Exh.P.L. The accused was challaned after completion of investigation.

6. The prosecution, in support of its case examined nine witnesses in all. Muhammad Ismail (P.W.7) a brother of the deceased, was examined as an eye‑witness. Muhammad Ikram and Muhammad Ramzan, named as eye‑witnesses in the F .I . R. were given up as having been over by the accused. The recovery of Chhuri P.1 was witnessed by Ali Mahboob Haidri,(P.W.1). The evidence on motive was furnished by Muhammad Yousaf.(p.W.4.). The post‑mortem on the dead body was conducted by Dr. Gulzar Ahmad/P.W.5 as given in detail above. The case was investigated by S.I. Muhammad Sharif (P.W.9). The evidence of the rest of the witnesses was of formal nature. These accused when examined after close of prosecution evidence denied the charge and pleaded innocence. He denied recovery of Chhuri P.1 at his instance. He did not produce any evidence in defence. The learned trial Judge placed reliance on the evidence of Muhammad Ismail(P.W.7), evidence on recovery of Chhuri P.1 and motive and convicted the accused as stated above.

7. It is contended on behalf of the appellant firstly, that the prosecution is supported by a solitary eye‑witness and as such, conviction cannot be recorded against the appellant; secondly that the evidence or motive was fabricated and not proved on record of this case; thirdly, the recovery of Chhuri P.1 was not proved and a: such, could not be considered as corroborating evidence in this case; and finally that in any case, it was not a case justifying capital sentence. The learned counsel for the State controverted these contentions.

8. We have carefully examined the record and have considered the contentions on be if of the appellant Ismail P.W. is a brother of Munir deceased. He has, however no enmity against Sardar Ali appellant to false y implicate him in this case. It was argued on behalf or the appellant that Ismail P. W. cannot be relied upon firstly, because he was a brother of the deceased secondly, he made improvements in his statement during the trial; thirdly, he introduced Muhammad Yousaf P.W. in the F. I. R. as well a; in his statement during the trial to support evidence on motive; and finally that there was no ostensible reason for his presence in Gujranwala Town at the time of occurrence. It was further argued that other persons who were present in the Bazar or the shopkeepers of nearby shops were neither cited nor examined as witnesses during the trial. We have considered these contentions. Muhammad Ismail P.W., no doubt is a brother of the deceased, but as stated above, he had no motive to falsely implicate Sardar Ali accused in this case. Muhammad Ismail complainant was resident of village Baryar, about 15 miles from the place of occurrence. It was stated by this witness that he was a Tonga driver and had gone to Gujranwala to make purchases. It was contended by the learned counsel that all the articles which Muhammad Ismail P.W. had to purchase were available in Wazirabad and as such, there was no occasion for him to come over to Gujranwala for purchases and that he was summoned from his village after the occurrence to be installed as complainant in this case. We do not find any merit in this argument. Gujranwala is a big and well‑known market. It was only at a distance of about 10/15 miles from Wazirabad. Ismail P.W. might have thought it proper to make purchases at cheaper rates from the market than from Wazirabad. In any case, he was not cross‑examined in detail on this point when he appeared as a witness during the trial, and secondly, the occurrence took place at about Deegerwela and the F.I. R. was lodged immediately thereafter at the Police Station at about 5‑45 p.m. There was no delay at all in lodging of the F . I . R . The F . I . R . contains all details of the occurrence. It also contains name of Muhammad Yousaf P.W. who made statement to support evidence on motive. If Muhammad Ismail P. W. had not been present at the time of occurrence at the spot, it would not have been possible for him to report the matter to police within few minutes of the occurrence. If he had been called from his house which was about 15/20 miles from the place of occurrence, the F.I.R. would have been lodged after sufficiently long time. It was argued by the learned counsel that the F.I. R. was recorded after preliminary inquiries late in the evening and not at 5‑45 p. m. as is indicated in the evidence. We have considered this argument but find it without any substance. There was no evidence or circumstance to show that the F.I.R. was recorded after preliminary inquiries or at a time other than the on recorded in the title of the F . I . R. We are satisfied that Muhammad Ismail P.W. was present at the spot when this occurrence took place He cannot be disbelieved simply because of his relationship with the deceased. It was stated by him during the trial, firstly, that he hat stated in the F.I. R. that he used to come to Gujranwala and therefore was acquainted with Sardar accused; secondly, that Yousaf P.W. me him at a common place in Gujranwala and informed him of the earlier incident; thirdly, that he had come to Gujranwala to purchase Dal Salt, etc; fourthly, that they both were going towards Dal Bazar to make purchases; fifthly, that Yousaf P.W. was doing business of soap and sixthly, that Yousaf was doing business of cotton seed and used to come to Gujranwala in that respect. He had not given these death in the F. I. R. and was, therefore, confronted with his statement EXh.P.E It was, therefore, argued by the learned counsel that these were material improvements made by this witness during the trial which made him an unreliable witness We have examined these improvements and do not find them of material nature. The only material improvement seems to be that during the trial he stated that Yousaf P.W. had met him at common place and had informed him of the occurrence which took place a day earlier to the murder. On a perusal of the statement of this witness, we find that he nowhere stated that the deceased had not informed him of the incident which took place between him and accused a day before the murder. The F.I.R. is never a detailed document. Muhammad Ismail complainant mentioned the presence of Muhammad Yousaf P.W. at the time of the incident which took place one day before the present occurrence. He might have omitted to meeting with Muhammad Yousaf P.W. at the common place. This improvement, as held above, is not material. The remaining improvements are only details of the occurrence and do not in any way affect they merits of the case. It is correct that the shopkeepers of the nearby shops and other persons present in the Bazar were neither cited nor examined as witnesses during the trial. It is common knowledge that people do not come forward to appear as witnesses in 'such like serious cases in order to avoid further enmities on that account. Secondly, it was not necessary for the prosecution to examine all those persons during trial. In our view, the evidence of Muhammad Ismail P.W. alone was enough to record conviction of Sardar Ali appellant. The other two eye‑witnesses were given up as having been won over by the accused. The prosecution was, therefore, neither bound nor required to examine them as their own witnesses. The evidence on motive is furnished by Muhammad Yousaf(P.W.4) He is no doubt a co‑villager of Munir deceased but not related to him. He had no enmity with the accused. It was stated by him that he had gone to Gujranwala to make usual purchases of raw material for manufacturing soap in Kot Khizari and saw Munir Ahmad deceased quarrelling with Sardar Ali accused. He, no doubt, appeared the police after about 6/7 days of the said occurrence but this delay in recording of his statement by the police, in our view, is not material because he was named in the F.I.R. as having witnessed the said incident which took place one day before the present murder. He was an independent witness and we find no reason to disbelieve him. His evidence fully corroborates the ocular account furnished by Muhammad Ismail in this case. The recovery of Chhuri P.1 was witnessed by the Ali Mahboob Haidri (P.W.1). He was not related to the deceased. He had no enmity with the accused. In fact he did not know either of the parties of this case. He was a Government employee and joined investigation with the police. The learned counsel for the appellant pointed out two discrepancies in statements of this witness and the Investigating Officer. According to Ali Mahboob Haidri P.W., Chhuri P.1 had been taken out by the accused which was buried underneath the ground and that a few persons were taking tea on the Khokha. On the other hand, according to the Investigating Officer, the Chhuri had been taken out by the accused from under the crushed stones under the wooden Phatta that no one. was present at the tea‑stall (Khokha) at that time have considered these discrepancies which are not of material nature. There is no discrepancy regarding the place of recovery. The only discrepancy is that according to one witness, the Chhuri had been taken out from beneath the ground while according to the other witness, it was taken out from under the crushed stones. Obviously, the crushes stones were lying on the ground. It was just a way of expression by two witnesses. In fact, the recovery was effected by digging out the earth at the instance of the accused. Similarly, the discrepancy about the presence of persons at the Khokha was also not material because it was an observation of the two witnesses. In our view the recovery of Chhuri P.1 is fully proved by the evidence of Ali Mahboob Haidri(P.W.1). This Chhuri was found stained with human blood and provides corroborating evidence to the ocular account of this case.

9. We have considered the question of sentence awarded to the appellants by the learned trial Court. The parties did not have previous enmity inter se. The deceased had slapped Sardar Ali accused a day earlier to this occurrence at a public place on account of which the accused must be having a sustained provocation in his mind. He inflicted only one injury and ran away from the place of occurrence immediately after the occurrence. He had no knowledge that the blow given by him had penetrated deep in the body of Munir deceased. He did not repeat blows after inflicting one injury on the person of the deceased. In these circumstances, we do not consider it a fit case for enhancement of sentence.

10. As a result of above discussion, we find no merits in this appeal which is accordingly dismissed. The conviction and sentence of Sardar Ali accused is maintained. Notice enhancement of sentence is re‑called and as such as, the connected criminal revision is dismissed. S. A. Appeal dismissed.